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Jiwa Ram And Others v. Gangoli
Structured Summary of the Opinion (Seth, J.)
Factual and Procedural Background
The prosecution arose from a private complaint against Jiwa Ram under section 420, Indian Penal Code, alleging cheating by means of a compromise filed in court. The complainant later asserted that words had been interpolated in the compromise after it was signed, and filed a further complaint naming Jiwa Ram, Fazal Ahmad and Kishori for offences under section 465 read with section 109, Indian Penal Code, and additionally alleging Jiwa Ram had committed an offence under section 471, Indian Penal Code.
The trial proceeded in the magistrate's court to the close of the prosecution evidence; charges were framed against the three accused and a date was fixed for defence evidence. The three accused applied to object to continuation of the prosecution on the ground that the offences fell within clause (c) of section 195(1), Criminal Procedure Code, and therefore could not be prosecuted on a private complaint.
The magistrate ruled that Fazal Ahmad and Kishori were not parties to the earlier proceedings that produced the compromise and therefore could be prosecuted on a private complaint; held that Jiwa Ram could be prosecuted on a private complaint under section 465/109 because the alleged offence was committed outside the court before the compromise was filed; but held that Jiwa Ram's alleged offence under section 471 required a complaint from the court and directed the charge under section 471 to be dropped against him.
The applicants revised to the Sessions Judge of Muttra. The Sessions Judge referred the matter to this Court, recommending that the entire proceedings against all three applicants be quashed. The High Court (Seth, J.) gave independent consideration and reached mixed conclusions described below.
Legal Issues Presented
- Whether cognizance of an alleged forgery related to a compromise filed in court by a party to that proceeding can be taken upon a private complaint, or whether a complaint of the court is required under section 195(1)(c), Criminal Procedure Code.
- Whether, where multiple persons combine in an alleged forgery and some of them are not parties to the proceeding in which the forged document is to be produced, those non-party co-offenders can be prosecuted on a private complaint or whether the section bars private complaints for all co-offenders.
Arguments of the Parties
Applicants' Arguments
- The applicants objected to the trial proceeding on the ground that the offences charged came within clause (c) of section 195(1), Criminal Procedure Code, and thus the magistrate was not competent to take cognizance on a private complaint.
Learned Counsel for Petitioners' Reliance
- Learned counsel for the petitioners relied on a Bombay High Court decision (In re Narayan Dhonddev Risbud) that interpreted the word "offence" in section 195(1)(c) as referring to the offence in the abstract (the entire transaction), thereby requiring a court complaint where the transaction involves forgery even if some offenders are non-parties.
- Learned counsel also cited a Madras case (Perianna Muthirian v. M. Vengu Ayyar), though the opinion notes that the observations in that Madras case were obiter.
Magistrate's Ruling (as recited in the opinion)
- The magistrate held that Fazal Ahmad and Kishori were not parties to the proceedings in which the compromise was filed and therefore could be proceeded against on a private complaint.
- The magistrate held that Jiwa Ram could be prosecuted under section 465/109 on a private complaint because the alleged forgery was committed outside court before the compromise was filed, but that a complaint from the court was necessary for the section 471 charge and that that charge should be dropped.
Sessions Judge's Recommendation (as recited in the opinion)
- The Sessions Judge recommended that the entire proceedings against all three applicants be quashed. The High Court notes that the Sessions Judge appears to have misunderstood the magistrate's order and did not specify additional reasoning for quashing the proceedings against Jiwa Ram.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| King-Emperor v. Kushal Pal Singh (Full Bench of this Court) | Held that clause (c) of section 195 applies only where an offence is committed by a party to a proceeding in respect of a document produced or given in evidence in that proceeding (i.e., the clause applies to offences committed by parties in relation to documents relied on in the proceeding). | The High Court relied on this Full Bench decision to conclude that Jiwa Ram, being a party to the proceeding in which the compromise was to be produced and having allegedly committed forgery to alter that compromise, could not be prosecuted on a private complaint; cognizance could be taken only on a complaint of the court. |
| In re Narayan Dhonddev Risbud (Bombay High Court) | Held that the word "offence" in section 195(1)(c) is used in an abstract sense — referring to the offence as a whole (the entire transaction) rather than the particular share of any individual offender. | The opinion considered this Bombay view but treated it as the sole exception to a uniform contrary line of authority; the Court rejected the Bombay construction as inconsistent with the statutory definition of "offence" in section 4(o), Criminal Procedure Code, and thus did not adopt it for the present case. |
| Perianna Muthirian v. M. Vengu Ayyar (Madras High Court) | The opinion notes observations on the construction of section 195(1)(c), but describes those observations as obiter in the reported decision. | The High Court observed that the remarks in this Madras case were obiter and therefore did not treat them as authoritative support for the Bombay view; the Madras case was noted but not followed for its obiter observations. |
| Ponnusami Udayar v. Emperor (Madras High Court) | The judge in this later Madras decision rejected the Bombay view and held that "offence" in clause (c) refers only to the share of the transaction taken by a party, so the power to proceed against non-parties is not affected; the judge observed that, with a single exception (the Bombay case), authorities favor that construction. | The High Court expressed respectful agreement with the view in Ponnusami Udayar and relied on its reasoning to hold that Fazal Ahmad and Kishori, who were not parties to the proceedings in which the compromise was produced, could be prosecuted on a private complaint. |
Court's Reasoning and Analysis
The Court first noted that the Sessions Judge appeared to have misconstrued the magistrate's order and that the magistrate had not held that section 195(1)(c) was inapplicable because section 465 was not specifically mentioned. The High Court stated that the magistrate's reasons were limited to: (a) two accused were not parties to the earlier proceedings in which the compromise was filed; and (b) one accused (Jiwa Ram) was alleged to have committed the offence in relation to the compromise while being a party to the proceeding.
The Court gave independent consideration and concluded that cognizance of the offence alleged against Jiwa Ram could be taken only upon a complaint of the court. The Court relied on the Full Bench decision in King-Emperor v. Kushal Pal Singh which held clause (c) of section 195 applies where the offence is committed by a party in respect of a document produced in that proceeding. The Court observed that Jiwa Ram was a party to the proceeding in which the compromise petition was filed, that the compromise was prepared to be produced in those proceedings, and that the alleged forgery had the object of changing the compromise to be recorded in court. The Court therefore concluded that, if forgery were proved against Jiwa Ram, it would have been committed by him as a party within the meaning of section 195(1)(c), and therefore prosecution on a private complaint was impermissible and proceedings against him should be quashed.
With respect to Fazal Ahmad and Kishori, the Court examined competing authorities on whether the word "offence" in section 195(1)(c) should be read as referring to the entire wrongful transaction (so barring private complaints for all co-offenders) or to the distinct act of a party (so permitting private complaints against non-parties). The Court reviewed the Bombay decision (In re Narayan Dhonddev Risbud) that adopted the former construction but noted that it stood alone against a large body of authorities favouring the latter.
The Court relied on the Madras decision in Ponnusami Udayar v. Emperor which, after reviewing authorities, concluded that "offence" in clause (c) refers only to the share taken by a party and does not deprive the courts of power to proceed against non-parties. The Court also invoked the statutory definition of "offence" in section 4(o), Criminal Procedure Code, and the substantive definition of forgery in sections 463 and 465, Indian Penal Code, to reason that when multiple persons combine to commit forgery the act of each forger is distinct. The Court considered the Bombay view inconsistent with the statutory definition and the prevailing authorities, and therefore concluded that the offences charged against Fazal Ahmad and Kishori were distinct from the offence charged against Jiwa Ram and that the two non-parties could be prosecuted on a private complaint.
Holding and Implications
Holding: The reference is partly accepted.
Immediate disposition and consequences:
- Proceedings against Jiwa Ram are quashed. The Court concluded that Jiwa Ram, being a party to the proceedings in which the compromise was to be produced and allegedly having altered that document, could be prosecuted only upon a complaint of the court under section 195(1)(c).
- The proceedings against Fazal Ahmad and Kishori shall continue according to law. Because they were not parties to the earlier proceedings in which the compromise was filed, they may properly be prosecuted upon a private complaint for the offences charged.
Broader implications: The opinion adopts and follows the view that clause (c) of section 195(1) CrPC should be construed to bar private complaints only insofar as the alleged offence is the share of the transaction taken by a party to the proceeding; it disapproves of the solitary contrary view in the Bombay decision as inconsistent with the statutory definition of "offence" and prior authorities. The Court did not purport to lay down a novel precedent beyond applying and preferring established authorities; the decision's direct effect is the quashing of the case against Jiwa Ram and continuation of trial against the other two accused.
Reference partly accepted.
Seth, J.:— Applicant Jiwa Ram was prosecuted for an offence under section 420, Indian Penal Code, on a private complaint.
A petition of compromise was filed in the case stating that the offence had been compounded. The complainant alleged that certain words were interpolated in the compromise after it had been signed and executed. The complainant, therefore, filed a further complaint against Jiwa Ram and two others, namely Fazal Ahmad and Kishori. In this complaint it was alleged that Jiwa Earn, Fazal Ahmad and Kishori had committed offences under section 465/109, Indian Penal Code and, further, that Jiwa Ram had committed an offence under section 471, Indian Penal Code also. The case proceeded in the court of the trying magistrate up to the stage when prosecution evidence was finished and charges were framed against the three accused persons named above and a date was fixed for hearing the defence evidence. The three accused persons, who are the applicants in this reference and who shall hereafter be referred to as the applicants, made an application objecting to the case being proceeded with on the ground that the prosecution was illegal inasmuch as the offences charged fell within the purview of section 195(1)(c) Criminal Procedure Code, and the court was not competent to take cognizance of these offences on a private complaint. The learned magistrate ruled that Fazal Ahmad and Kishori were not parties to the proceedings in which the compromise, application was filed and therefore cognizance of the case could be taken against them on a private complaint. The learned magistrate, further, ruled that Jiwa Ram could be prosecuted for an offence under section 465/109, Indian Penal Code, on a private complaint because the offence was alleged to have been committed outside the court before the compromise was filed. The learned magistrate, however, held that for Jiwa Ram's prosecution under section 471, Indian Penal Code a complaint from the court was necessary and directed the charge sheet to be amended by dropping the charge under section 471, Indian Penal Code against Jiwa Ram.
The applicants went up in revision to the Sessions Judge of Muttra who has referred the case to this Court with the recommendation that the entire proceedings against all the three applicants be quashed. It appears that the learned Sessions Judge has not taken the trouble to scrutinise the judgment of the learned magistrate with proper care. The learned Sessions Judge seems to think that the learned magistrate had ruled that section 195(1)(c), Criminal Procedure Code, did not apply to the case because section 465 was not specifically mentioned therein. The learned magistrate does not appear to have said anything of the kind in his order. As already stated, the reasons assigned by the learned magistrate for overruling the objections of the applicants were that two of them were not parties to the earlier proceedings and one of them was alleged to have committed the offence before the compromise petition was brought on the record of the court. The learned Sessions Judge has not disclosed any other reason for setting aside the order of the learned magistrate against Jiwa Ram and for quashing the proceedings as against him.
I have, however, given independent consideration to this matter and have reached the conclusion that cognizance of the offence alleged to have been committed by Jiwa Ram could be taken only upon a complaint of the court and could not be taken upon a private complaint. The learned magistrate, in overruling Jiwa Ram's objection, has relied upon a decision of a Full Bench of this Court in King-Emperor v. Kushal Pal Singh(1) wherein it was laid down that clause (c) of section 195, Criminal Procedure Code, applies only to cases where an offence is committed by a party, as such, to a proceeding in any court in respect of a document which has been produced or given in evidence in such proceeding. Jiwa Ram was already a party to the proceeding in which the compromise petition was put in. The compromise petition was prepared with the avowed object of being produced in those proceedings. The, object of the alleged forgery was to have recorded a compromise differing in its contents, from the one settled between the parties. If it be ultimately found that the offence of forgery was committed by Jiwa Ram, there cannot be slightest doubt that it was committed by him as a party to the proceedings under section 420, Indian Penal Code. I am, therefore, of the opinion that Jiwa Ram cannot be prosecuted for the alleged offence under section 465/109, Indian Penal Code, on a private complaint and the proceedings against aim should be quashed.
I am, however, unable to accept the recommendation of the learned Sessions Judge with regard to the other two applicants, Fazal Ahmad and Kishori. The learned Sessions Judge has expressed the view that in a case in which all the offenders were not parties to the proceeding in which forgery is alleged to have been committed, the sanction or complaint of the court is necessary for the prosecution of even those persons who were not parties to the proceeding. He has derived support for this view from a decision of the Bombay High Court in In re Narayan Dhonddev Risbud in which it has been held that the word “offence” in section 195(1)(c), Criminal Procedure Code, is designedly used in somewhat abstract manner and that it is the “offence”, itself, not any particular offender's offence, which the section aims at. The learned counsel for the petitioners has further relied on a decision of the Madras High Court in Perianna Muthirian v. M. Vengu Ayyar. The observations in the Madras case are obiter; so the Bombay decision is the only case in support of this view. It is interesting to note that the Madras case relied upon by the learned counsel for the petitioners was decided by Curgenven, J., on the 11th September 1928. The learned Judge had occasion to reconsider this very matter fourteen days later on the 25th September, 1928, in Ponnusami Udayar v. Emperor wherein he expressed a contrary view dissenting from the view of the Bombay High Court. The learned Judge observed:
“The question is whether, when an offence of forgery is committed by more than one person, one at least being a party to the proceeding in which the document is produced, such participants in the forgery is are not parties to the proceeding may be prosecuted otherwise than under the provisions of sections 195 and 476, Criminal, Procedure Code. The answer to the question depends primarily upon the construction to be placed upon the term ‘offence’ as it is used in clause (c), section 195(1) whether it denotes the transaction of forgery as a whole, so that the court is debarred from taking cognizance of that transaction, including the shares taken in it by non-parties as well as parties, or whether it refers only to the share taken in the transaction by a party, so that power to proceed against non-parties is not affected.”
The learned Judge answered the question by holding that the word “offence” refers only to the share taken in the transaction by a party so that power to proceed against non-parties is not affected. A number of authorities, including the Bombay case, were cited before the learned Judge and in dealing with them he observed as follows:
“A large number of rulings have been brought to my attention and with a single exception they favour the latter of the two constructions. The exception is afforded by a Bombay case In re Narayan Dhonddev Rishud. The learned Judges who decided that case held that it is the ‘offence’ in itself, not any particular offender's offence which the section aims at and in the case under reference the ‘offence’ would mean the offence generally of forgery…. I must confess that I feel much in sympathy with the view that this is how the law should stand. Nevertheless, this case not only stands alone but makes no reference to the large body of judicial opinion which favours a contrary interpretation.”
The learned Judge expressed the result arrived at by him on an examination of the various authorities cited before him in the following words:
“It is at least incontestable, however, that with the single exception of the Bombay case, here and elsewhere, the section has been uniformly construed in one way. In this state of the authorities, it is impossible for me to rule that the learned sub-divisional magistrate has erred in law in deciding that the trial of the two petitioners should continue.”
Nineteen years have elapsed since the decision of this Madras case. The learned counsel for the petitioners has not been able to point out a single case decided since then in which the Bombay view might have been followed. It follows, therefore, that even now the Bombay case is the only exception to the interpretation uniformly put on section 195(1)(c), Criminal Procedure Code. It will serve no useful purpose to refer to the authorities cited in the Madras case. I find myself in respectful agreement with the view expressed in Ponnusami Udayar v. Emperor.
According to section 4(o), Criminal Procedure Code, “offence” means any act or omission made punishable by any law for the time being in force. The act which has been made punishable by section 465, Indian Penal Code, has been described in section 463, Indian Penal Code, to be the making of any false document or part of a document with a particular intent. It seems obvious to me that when more than one person combine to commit forgery, the act of each individual forgerer is distinct from the act of another. According to the Bombay decision, it is the entire transaction that constitutes the offence. This interpretation is opposed to the definition of the word “offence”, already quoted, because, according to section 4(o), Criminal Procedure Code, it is the act, and not the transaction, which constitutes the offence.
For the reasons indicated above, I am of the opinion the offences with which. Fazal Ahmad and Kishori were charged were distinct from the offence with which Jiwa Ram was charged. Fazal Ahmad and Kishori, not being parties to the proceedings under section 420, Indian Penal Code, could, therefore, be prosecuted upon a private complaint.
Accordingly, I accept the recommendation of the learned Sessions Judge to this extent that I direct the proceedings against Jiwa Ram to be quashed, but I decline to accept the recommendation of the learned Sessions Judge with regard to Fazal Ahmad and Kishori. The case against these two applicants shall proceed according to law.
Reference partly accepted.
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